Constructive dismissal - the last straw

In some circumstances an employee may be able to resign and successfully claim constructive dismissal where a series of acts by their employer amounts to a repudiatory breach of the employee’s contract of employment. A repudiatory breach is a breach of contract which gives an innocent party the right to end the contract without giving notice. When the contract ends in these circumstances the innocent party is entitled to refuse to be bound by the contract’s terms. The final incident (also known as the last straw) which causes the employee to resign may be relatively insignificant, but when viewed collectively with the previous acts the employer may have demonstrated an intention to no longer be bound by the contract of employment, thus giving rise to a potential claim for constructive dismissal.

An employee will only be able to rely on a series of acts to justify their claim for constructive dismissal if the final incident enables them to do so. If this final act is not capable of contributing to the series of acts, which collectively amount to a repudiatory breach, these earlier acts will not be taken into account and the employee will not be able to rely upon them if they decide to bring a claim.

There have been various cases where an employee has suffered a repudiatory breach by their employer but has chosen to affirm the contract and continue working instead of terminating the contractual relationship. In such cases an employee may later experience an act which they consider to be the ‘last straw’ which then results in them resigning and claiming constructive dismissal. The Court of Appeal has recently confirmed in Kaur v Leeds Teaching Hospitals NHS Trust that in such instances the employee can rely on the previous repudiatory breach despite the fact the employee previously affirmed it.